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Gurganus v. Gurganus

Court of Appeals of North Carolina

February 21, 2017

MARY N. GURGANUS, Plaintiff,
v.
CHARLES M. GURGANUS, Defendant.

          Heard in the Court of Appeals 25 August 2016.

         Appeal by defendant from orders entered 3 September 2015 by Judge William M. Cameron III in Onslow County 01 CVD 954 District Court.

          Sullivan & Tanner, P.A., by Mark E. Sullivan and Ashley L. Oldham, for plaintiff-appellee.

          The Lea/Schultz Law Firm, P.C., by James W. Lea III and Paige E. Inman, for defendant-appellant.

          McCULLOUGH, Judge.

         Charles M. Gurganus ("defendant") appeals from summary judgment orders entered in favor of Mary N. Gurganus ("plaintiff") concerning the termination of alimony, plaintiff's share of defendant's military retirement benefits, and maintenance of a Survivor Benefit Plan ("SBP") to the benefit of plaintiff. For the following reasons, we affirm.

         I. Background

          Plaintiff and defendant were married on 1 April 1978. On 15 March 2001, plaintiff filed a complaint in Onslow County District Court seeking a divorce from bed and board on grounds of adultery, constructive abandonment, alcohol abuse, and other indignities to render plaintiff's condition intolerable and life burdensome. Along with the divorce from bed and board, plaintiff sought alimony, custody of their minor child, child support, possession of the marital residence, attorneys fees, post separation support, and equitable distribution.

         On 2 May 2001, the trial court entered a temporary order requiring "defendant . . . to pay to plaintiff as postseparation and as support for the minor daughter, the sum of $3, 500.00 per month . . . ." The temporary order was entered nunc pro tunc to the hearing date, 27 April 2001.

         Defendant filed an answer and counterclaim on 29 May 2001, in which defendant denied the allegations asserted as the bases of plaintiff's claim for divorce from bed and board. Defendant also asserted his own claims for a divorce from bed and board and equitable distribution, while seeking to avoid paying alimony and attorneys fees. Plaintiff submitted a reply on 22 June 2001.

         The matter came on for hearing during the 10 September 2001 term of Onslow County District Court. Judgment was entered on 5 April 2002, nunc pro tunc 10 September 2001. That judgment granted plaintiff a divorce from bed and board from defendant, ordered defendant to pay alimony to plaintiff, and equitably distributed the marital property with an unequal distribution to the benefit of plaintiff. As part of the equitable distribution, plaintiff was to receive a percentage of defendant's military retirement benefits, including amounts to be paid under defendant's SBP. An additional order concerning defendant's SBP coverage was entered with the consent of the parties on 8 April 2003.

         Following a 31 July 2003 hearing on the court's own Rule 60(a) motion, an order was entered on 8 August 2003, nunc pro tunc 31 July 2003, to correct a clerical mistake in the 5 April 2002 judgment.

         Years later after defendant retired from the military, on 7 July 2014, defendant filed a motion in the cause asserting three claims. First, defendant sought termination or reduction of alimony because plaintiff would be receiving a percentage of his military retirement benefits. Second, defendant sought a declaratory judgment regarding use of the "Seifert Formula" in the 5 April 2002 judgment to calculate plaintiff's allotment of defendant's military retirement benefits contending that plaintiff should not benefit from his rise in the military ranks and the corresponding increase in his retirement benefits that was attained due to his active efforts post-separation. Third, defendant sought to have the expense of the SBP assigned to plaintiff.

         On 23 September 2014, defendant filed a motion to amend his motion in the cause to add a fourth claim, that his active efforts to rise in the military ranks and improve his income and plaintiff's actions against him to impede his advancement "constitutes a material and substantial change in circumstances warranting a modification of the [judgment] pursuant to the case of White v. White, 152 N.C.App. 588, 568 S.E.2d 283 ( N.C. Ct. App. 2002), aff'd, 579 S.E.2d 248 ( N.C. 2003)." Discovery then ensued.

         On 1 April 2015, plaintiff filed a motion for summary judgment on grounds that res judicata barred reconsideration of plaintiff's share of defendant's retirement benefits and defendant's SBP coverage. Plaintiff's summary judgment motion came on for hearing in Onslow County District Court before the Honorable William M. Cameron III on 19 August 2015. On 3 September 2015, the court entered three separate orders granting summary judgment in favor of plaintiff on each of the three claims asserted in defendant's 7 July 2014 motion in the cause. The court determined there was no basis in the law for granting defendant's motion in the cause; therefore, plaintiff was entitled ...


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